MI: One Dad Per Kid, Please

The Michigan Court of Appeals recently held that a child can have only one legal father. If that doesn’t sound ground-breaking, consider this.

Man and woman date. Child is conceived during relationship.

Man acknowledges paternity of child. Man and woman live together and raise child together.

Man and woman break up. Man and woman battle for custody of child in paternity case.

Woman’s former boyfriend obtains DNA test proving his biological paternity. Woman’s former boyfriend brings action to establish legal paternity of child.

What’s a court to do? Here’s what the trial court did.

On the one hand, the court refused to revoke the man’s acknowledgment of paternity and, by extension, refused to quash the man’s status as legal father.

But, on the other hand, the court also entered an order establishing the woman’s former boyfriend as the legal father of the child.

Taking the two rulings together, the court, in effect, established two different legal fathers for the boy.

If that seems illogical to you, you’re in good company. The Michigan Court of Appeals agreed, reversing and remanding the case for new trial level proceedings.

The appellate court held that the court could not establish paternity of a second legal father without first revoking the acknowledgment of paternity by the first legal father.

The case may be viewed as a victory for legal fathers over biological fathers.

But it is more properly viewed as a victory for those who have already worn the uniform of dad and stepped up to the plate for their acknowledged children, over those who have not yet done so.

Read more in this Michigan Lawyers Weekly article: order of filiation cannot be granted when acknowledgment of parentage already exists, regardless of who the biological father is.

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In SC, a Domestic Violence Prosecutor is Waiting … For a Courtroom

In South Carolina, “cockfighting” is a felony.

Stamping out domestic violence doesn’t seem to be much of a priority there, however. Domestic violence is only a misdemeanor.

For which the county hired one lawyer 4 months ago to prosecute criminal domestic violence cases in county court.

But the county hasn’t assigned her a courtroom, so she hasn’t gotten down to business yet. That’s because other misdemeanors are currently handled town by town in Charleston County.

And Charleston County officials don’t think domestic violence cases merit any different or special handling.

They apparently prefer that the one domestic violence prosecutor spend more of her time traveling back and forth from municipality to municipality, rather than actually prosecuting cases and aiding victims of domestic violence, as she was hired to do.

By contrast, centralized domestic violence courts are operating effectively elsewhere in South Carolina. They provide better safety and security for victims, facilitate better tracking of cases and repeat offenders, and promote involvement of all of the professionals who provide crucial services to affected families.

Read more in this Charleston Post and Courier article: A case of waiting in abuse trials – Domestic violence reform stalls as county officials spar over venue.

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Contingency Fee Arrangements Really Are Prohibited in Family Court Cases

Every so often, a prospective client requests a contingency fee arrangement in their family court case – usually on the phone, before they even come in.

Each time, my office advises them flat out that Florida attorneys are not permitted to work on contingency fee arrangements in family court cases.

Often, for whatever the reason, this meets with skepticism – and resistance.

Sometimes, the callers even go so far as to say “but another [Florida] attorney agreed to do it on a contingency fee” …

So, for those callers – and others – who may have wondered about contingency fees in family court cases …

A recent Nevada Supreme Court case, citing both court decisions in other states and administrative opinions from various state bars, squarely held that:

a contingency fee agreement in a family court case violates rules governing attorneys in the practice of law.

If you’re still skeptical, read more in this Las Vegas Review Journal article: Nevada Supreme Court rules post-divorce contingency fee agreement unenforceable.

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Is Quickie Divorce Swift Justice?

How long does a divorce trial take? Well, generally it depends on the issues and evidence involved in the case.

But maybe not everywhere.

In Nevada, a 2004 divorce trial, requiring division of substantial business and investment properties, was concluded in just 16 minutes! Now that’s efficient.

Too efficient, the Nevada Supreme Court concluded, as it reversed and remanded for a new trial.

The trial court entered a ruling on an unusual property division, involving not only the spouses but also a spouse’s sibling – without any sworn testimony (and minimal if any other evidence) to base the ruling on.

And after first taking some time to hear and deny a request for a postponement based on the fact that two of the three interested parties barely spoke English and didn’t have attorneys – or even neutral, credentialed translators.

Read more in this Las Vegas Review Journal article: Supreme Court throws out property settlement in divorce.

But read fast – or it may take longer than the trial did.

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RI Prenup Valid Despite Unconscionability

All too often, one bride or groom-to-be calls to set up an appointment to review a prenup – a few days before their wedding. As often as not, they cancel their appointment at the last minute.

From offhand remarks they make, it seems they have “spoken to some friends and relatives” and “they have concluded” that they have nothing to worry about.

“I’m signing the agreement at the last minute. I’m actually better off for not consulting an attorney. I’m really not too sure what my fiance’s assets are – but I’m not marrying them for their money anyway.”

And so on.

Those folks would probably cringe over a recent Rhode Island decision. The bride in that case was not represented by counsel, but the groom was. The couple signed the agreement just four days before the wedding. The groom’s major assets were listed – but their values weren’t.

The agreement contained typical, but empty, boilerplate language reciting that the parties had made full disclosure, that they were satisfied with it, and that they had had adequate opportunity to review it.

The trial court refused to enforce the agreement on the grounds that it was unconsionable, the groom had not made full disclosure and that, therefore, the bride’s execution was involuntary. But that was the trial court.

On appeal, the Rhode Island Supreme Court agreed that the agreement was unconsionable – but reversed, upholding the unconsionable agreement.

In everyday language, the Rhode Island high court held that: if you signed it, you’re going to have to live with it.

And that is not inconsistent with the modern jurisprudence regarding prenups, absent fraud.

While there was some reported language suggesting that the holding was based at least in part on the wife’s failure to meet her burden of proof as to her allegations, the tone of the report suggests that the wife would have had to have proved fraud to satisfy the appellate court.

Read more in this Rhode Island Lawyers Weekly article: RI Supreme Court rules prenup agreement valid despite unconscionability.

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Parental Alienation Awareness Day

The governors of Maine and, now, Iowa have established April 25th as Parental Alienation Awareness Day.

These declarations purport to legitimize Parental Alienation as a psychological disorder associated with high-conflict child custody disputes.

But while these two governors may recognize it as a psychological disorder, neither the American Psychological Association or any other qualified organization recognizes it as such.

Father’s groups tout it and have used it as a kind of political pressure tactic to win greater access to their children – regardless of whether that serves the children’s best interests.

Which is why mother’s groups oppose its recognition, crediting it with handing child custody over to abusers.

While there are cases of one parent deliberately trying to turn children against the other parent for no valid reason, there do not appear to be any studies measuring how frequently – or infrequently – that actually occurs.

The true numbers may not bear any relation to the “buzz” over parental alienation.

And anecdotal evidence casts doubt over whether children benefit from recognition and application of this theory in custody disputes – or whether they are hurt by its misuse.

Read more in this Town Hall article: Parental alienation gets a day and this e-Release article: Iowa Governor Thomas J. Vilsack Proclaims April 25th as Parental Alienation Awareness Day.

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NY Times Endorses Saving the Net Through Net Neutrality

I’ve written several previous posts about Net Neutrality.

The battle for Net Neutrality is still being waged.

Supporters of free speech and equal access to the internet are slowly starting to gain ground.

They gained an important ally last week in the New York Times.

An important New York Times editorial strongly endorsed Net Neutrality last week.

The editorial emphasized just how critical equal access to the internet is to advancing democracy and innovation.

And to giving voice to some points of view that may compete with the voice of enormously wealthy, powerful and influential cable and telephone companies.

Read this important New York Times editorial: Protecting Internet Democracy.

But the first net-stop for any internet user who wants to support the cause of Net Neutrality remains the home of the Save the Internet campaign. Additional support is still needed and welcomed by the movement.

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CA: Spouse Can’t Shield Personnel Records of Violence on Privacy Grounds in Divorce and Custody Case

A California trial court denied a woman’s motion for access in their divorce case to her police officer-husband’s non-financial personnel records.

The woman had alleged that she was a victim of domestic violence and needed the records at least in part for their bearing on custody and visitation determinations in their case.

The family trial court, in effect, held that the husband’s privacy rights outweighed the mother’s and children’s rights to be protected.

The California Court of Appeal reversed, however, finding that the mother demonstrated good cause for her records request, in that the personnel records could provide additional evidence of the husband’s history of domestic and other violence and that that was relevant to custody and visitation determinations in the case.

Read more in this Metropolitan News-Enterprise article: Court: Woman Alleging Abuse in Divorce Case Entitled To Seek Personnel Files of Ex-Officer Husband.

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New Beginnings in the New Year

The New Year represents a new beginning for families that are transitioning after a divorce or separation. It can be an excellent time to make a roadmap of where the family wants to go and how it plans to get there.

A children’s advocacy group recommends goal planning at the family level and then breaking the collective family plan into individual plans for family members which support the family’s goals.

Read more in this Parents and Kids article: Divorce and new beginnings for you and your kids
and at Kids First.

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Computer Game Aims to Help Kids Get Through Divorce and Separation

An Israeli company has a released a computer game grounded in child psychology research.

It’s purpose is to help children fare better in divorces and separations of their parents.

As to how, the game is interactive and promotes children opening up with parents and therapists.

The game also aids parents in gaining insight into what their children are experiencing and feeling regardless.

All while parents and children enjoy a computer game together. A modern twist on “play therapy”.

Read more in this Virgin.net article: Game helps kids cope with divorce.

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